NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________
Nos. 20-2943 and 20-2944 _______________________
UNITED STATES OF AMERICA
v.
JERRY ZWEITZIG, Appellant
_______________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court Nos. 2:19-cr-00311-001 and 2:20-cr-00153-001 District Judge: The Honorable Wendy Beetlestone __________________________
Submitted Under Third Circuit L.A.R. 34.1(a) June 21, 2021
Before: SMITH, Chief Judge, MATEY, and FISHER, Circuit Judges
(Filed July 14, 2021) __________________________
OPINION* __________________________
SMITH, Chief Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Jerry Zweitzig appeals his sentence for manufacturing and possessing child
pornography. For the reasons below, we will affirm the judgment of the District Court.
I. BACKGROUND
Zweitzig entered an open guilty plea to six counts of manufacturing child pornography,
in violation of 18 U.S.C. § 2251(a) and (e), and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Each manufacturing
count has a statutory minimum term of imprisonment of 15 years and a maximum term of
30 years, and the possession count has a maximum of 20 years.
The Presentence Report (“PSR”) calculated Zweitzig’s applicable sentencing range
under the United States Sentencing Guidelines (“U.S.S.G.”) to be life. The Guidelines
make clear that “[w]here the statutorily authorized maximum sentence [for a single count]
is less than the minimum of the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(a) (emphasis
added). They further provide that “[i]f the sentence imposed on the count carrying the
highest statutory maximum”—here, any manufacturing count—“is less than the total
punishment, then the sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a combined sentence equal to
the total punishment.” Id. § 5G1.2(d) (emphasis added). “The ‘total punishment’ is
determined by the adjusted combined offense level.” United States v. Chorin, 322 F.3d
-2- 274, 278 (3d Cir. 2003). The PSR calculated Zweitzig’s adjusted combined offense level
to be 48, which results in a “total punishment” for Zweitzig of life imprisonment. See
U.S.S.G. ch. 5, pt. A. Zweitzig did not object to any calculations in the PSR.
At sentencing, the Government argued that Zweitzig should receive the maximum term
of imprisonment for each of the seven counts, and that all sentences should run
consecutively. The sum of the maximum terms yields a total term of imprisonment of 200
years. Zweitzig sought a downward variance under 18 U.S.C. § 3553(a) to the minimum
15 years’ imprisonment. Zweitzig’s motion emphasized the parsimony provision of
§ 3553(a), which requires that a court “impose a sentence sufficient, but not greater than
necessary,” to achieve the purposes of sentencing. Zweitzig argued that based on several
factors—his age at sentencing (72), “empirical data” that imprisonment does not reduce
recidivism, and the proposition that “lengthy imprisonment of child pornography
possessors [does not] have any deterrent or preventative effect on the production or
dissemination of child pornography”—a sentence beyond 15 years’ imprisonment would
be “far in excess of what is required to ensure both general and individual deterrence.”
App. 73–74 (Sentencing Memo.). Zweitzig also argued that a 200-year prison sentence
would be a “grave disparity” and submitted “a chart of cases involving similar conduct . .
. and how those defendants were sentenced.” Id. at 75 (citing § 3553(a)(6)).
The District Court denied Zweitzig’s motion and sentenced him to a total term of
-3- imprisonment of 200 years in accord with the Government’s position. Zweitzig then
“ma[d]e the objection under Flores-Mejia [759 F.3d 253 (3d Cir. 2014) (en banc)] that [the
Court] did not sufficiently consider [his] arguments earlier.” App. 134 (Hr’g Tr. 55:6–11).
The Court responded that in its “discussion of the § 3553(a) factors, [it] did include a
discussion of [Zweitzig’s] argument.” Id. (Hr’g Tr. 55:12–14). Zweitzig appealed.
II. DISCUSSION1
Zweitzig argues that his sentence is both procedurally and substantively unreasonable.
The abuse-of-discretion standard applies to both inquiries, and Zweitzig bears the burden
of demonstrating unreasonableness. See United States v. Tomko, 562 F.3d 558, 567 (3d
Cir. 2009) (en banc). Zweitzig has not carried his burden as to either procedure or
substance.
A. Procedural Reasonableness
Post Booker, a district court must give “‘meaningful consideration to the § 3553(a)
factors’ before deciding on a sentence.” United States v. Merced, 603 F.3d 203, 215 (3d
Cir. 2010) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). “[I]f a
party raises a colorable argument about the applicability of one of the § 3553(a) factors,
the district court . . . . should address that argument.” Id. “A separate and equally important
1 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). -4- procedural requirement” is that the district court “furnish an explanation ‘sufficient for us
to see that the particular circumstances of the case have been given meaningful
consideration.’” Id. at 215–16 (quoting United States v. Levinson, 543 F.3d 190, 196 (3d
Cir. 2008)).
“Nonetheless, when a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356–57 (2007). Here, the District Court chose to apply the Guidelines. The advisory
guidelines sentence for each count is the statutory maximum, see U.S.S.G. § 5G1.1(a),
which the Court imposed. And the Guidelines recommended that Zweitzig’s sentences all
run consecutively because any term of years is less than the “total punishment” of life
imprisonment. See id. § 5G1.2(d); see also, e.g., United States v. Lewis, 594 F.3d 1270,
1275–76 (10th Cir.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________
Nos. 20-2943 and 20-2944 _______________________
UNITED STATES OF AMERICA
v.
JERRY ZWEITZIG, Appellant
_______________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court Nos. 2:19-cr-00311-001 and 2:20-cr-00153-001 District Judge: The Honorable Wendy Beetlestone __________________________
Submitted Under Third Circuit L.A.R. 34.1(a) June 21, 2021
Before: SMITH, Chief Judge, MATEY, and FISHER, Circuit Judges
(Filed July 14, 2021) __________________________
OPINION* __________________________
SMITH, Chief Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Jerry Zweitzig appeals his sentence for manufacturing and possessing child
pornography. For the reasons below, we will affirm the judgment of the District Court.
I. BACKGROUND
Zweitzig entered an open guilty plea to six counts of manufacturing child pornography,
in violation of 18 U.S.C. § 2251(a) and (e), and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Each manufacturing
count has a statutory minimum term of imprisonment of 15 years and a maximum term of
30 years, and the possession count has a maximum of 20 years.
The Presentence Report (“PSR”) calculated Zweitzig’s applicable sentencing range
under the United States Sentencing Guidelines (“U.S.S.G.”) to be life. The Guidelines
make clear that “[w]here the statutorily authorized maximum sentence [for a single count]
is less than the minimum of the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(a) (emphasis
added). They further provide that “[i]f the sentence imposed on the count carrying the
highest statutory maximum”—here, any manufacturing count—“is less than the total
punishment, then the sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a combined sentence equal to
the total punishment.” Id. § 5G1.2(d) (emphasis added). “The ‘total punishment’ is
determined by the adjusted combined offense level.” United States v. Chorin, 322 F.3d
-2- 274, 278 (3d Cir. 2003). The PSR calculated Zweitzig’s adjusted combined offense level
to be 48, which results in a “total punishment” for Zweitzig of life imprisonment. See
U.S.S.G. ch. 5, pt. A. Zweitzig did not object to any calculations in the PSR.
At sentencing, the Government argued that Zweitzig should receive the maximum term
of imprisonment for each of the seven counts, and that all sentences should run
consecutively. The sum of the maximum terms yields a total term of imprisonment of 200
years. Zweitzig sought a downward variance under 18 U.S.C. § 3553(a) to the minimum
15 years’ imprisonment. Zweitzig’s motion emphasized the parsimony provision of
§ 3553(a), which requires that a court “impose a sentence sufficient, but not greater than
necessary,” to achieve the purposes of sentencing. Zweitzig argued that based on several
factors—his age at sentencing (72), “empirical data” that imprisonment does not reduce
recidivism, and the proposition that “lengthy imprisonment of child pornography
possessors [does not] have any deterrent or preventative effect on the production or
dissemination of child pornography”—a sentence beyond 15 years’ imprisonment would
be “far in excess of what is required to ensure both general and individual deterrence.”
App. 73–74 (Sentencing Memo.). Zweitzig also argued that a 200-year prison sentence
would be a “grave disparity” and submitted “a chart of cases involving similar conduct . .
. and how those defendants were sentenced.” Id. at 75 (citing § 3553(a)(6)).
The District Court denied Zweitzig’s motion and sentenced him to a total term of
-3- imprisonment of 200 years in accord with the Government’s position. Zweitzig then
“ma[d]e the objection under Flores-Mejia [759 F.3d 253 (3d Cir. 2014) (en banc)] that [the
Court] did not sufficiently consider [his] arguments earlier.” App. 134 (Hr’g Tr. 55:6–11).
The Court responded that in its “discussion of the § 3553(a) factors, [it] did include a
discussion of [Zweitzig’s] argument.” Id. (Hr’g Tr. 55:12–14). Zweitzig appealed.
II. DISCUSSION1
Zweitzig argues that his sentence is both procedurally and substantively unreasonable.
The abuse-of-discretion standard applies to both inquiries, and Zweitzig bears the burden
of demonstrating unreasonableness. See United States v. Tomko, 562 F.3d 558, 567 (3d
Cir. 2009) (en banc). Zweitzig has not carried his burden as to either procedure or
substance.
A. Procedural Reasonableness
Post Booker, a district court must give “‘meaningful consideration to the § 3553(a)
factors’ before deciding on a sentence.” United States v. Merced, 603 F.3d 203, 215 (3d
Cir. 2010) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). “[I]f a
party raises a colorable argument about the applicability of one of the § 3553(a) factors,
the district court . . . . should address that argument.” Id. “A separate and equally important
1 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). -4- procedural requirement” is that the district court “furnish an explanation ‘sufficient for us
to see that the particular circumstances of the case have been given meaningful
consideration.’” Id. at 215–16 (quoting United States v. Levinson, 543 F.3d 190, 196 (3d
Cir. 2008)).
“Nonetheless, when a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356–57 (2007). Here, the District Court chose to apply the Guidelines. The advisory
guidelines sentence for each count is the statutory maximum, see U.S.S.G. § 5G1.1(a),
which the Court imposed. And the Guidelines recommended that Zweitzig’s sentences all
run consecutively because any term of years is less than the “total punishment” of life
imprisonment. See id. § 5G1.2(d); see also, e.g., United States v. Lewis, 594 F.3d 1270,
1275–76 (10th Cir. 2010) (collecting cases; holding no procedural error for consecutive
sentences resulting in 330 years’ imprisonment).
The District Court did not commit any procedural error because, as the Court stated in
response to Zweitzig’s Flores-Mejia objection, it sufficiently addressed the § 3553(a)
factors and his arguments. With respect to parsimony, we have held that “district judges
are not required by the parsimony provision to routinely state that the sentence imposed is
the minimum sentence necessary.” United States v. Dragon, 471 F.3d 501, 506 (3d Cir.
2006). The Court explained why a prison sentence was necessary to achieve specific
-5- deterrence and explicitly acknowledged Zweitzig’s age-related arguments when discussing
general deterrence and the need for a lengthy sentence. App. 124–25 (Hr’g Tr. 45:7–46:1)
(“[W]ith respect to general deterrence, your attorney has suggested that given your age and
the viewpoint that a long sentence would not actually deter people from doing what you
have done. . . . [E]veryone should understand that if they engage in these kind of activities,
whatever their age, however young they are, they risk spending their life and dying in
prison.”).
Turning to § 3553(a)(6), the Court not only noted “the need to avoid unnecessary
sentencing disparities,” but mentioned that it could look to the Guidelines to help avoid
such disparities. App. 127 (Hr’g Tr. 48:18–21). While Zweitzig emphasizes his chart of
sentences for similar convictions, unless a defendant satisfies his burden to “show[] that
other defendants’ circumstances exactly paralleled his, [] a court should not consider
sentences imposed on defendants in other cases.” United States v. Lacerda, 958 F.3d 196,
215 (3d Cir. 2020) (quoting United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008)).
Because the record demonstrates that the District Court gave meaningful consideration
to the § 3553(a) factors and Zweitzig’s arguments, the Court did not procedurally err.
B. Substantive Reasonableness
“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no
reasonable sentencing court would have imposed the same sentence on that particular
-6- defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. “If the
sentence is within the Guidelines range, the appellate court may, but is not required to,
apply a presumption of reasonableness.” Gall v. United States, 552 U.S. 38, 51 (2007)
(citing Rita, 551 U.S. at 347). “We will apply the presumption here.” Lacerda, 958 F.3d
at 215.
Zweitzig’s substantive reasonableness challenge focuses on the parsimony provision.
He argues that “there are simply no circumstances under which 2,400 months of
incarceration of a 72 year-old, first time offender, is sufficient but not greater than
necessary.” Zweitzig Br. 25. We are not convinced. Is the sentence so long as to exceed
Zweitzig’s life expectancy? Yes, but is it unreasonable? Considering all the circumstances
of Zweitzig’s case, including the egregious nature of his crimes, we conclude that a
reasonable sentencing court could have imposed the same sentence.
III. CONCLUSION
For the foregoing reasons, we will affirm.
-7-